Monday, May 20, 2019
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The Reconstruction Right To Carry

Do Americans have a constitutional right to carry guns in public? Today, nine states, including New York, California and New Jersey, make it very difficult for law-abiding citizens to obtain any sort of carry permit. Public carry was not at issue in the Supreme Court’s landmark Heller and McDonald decisions; under those precedents, the core constitutional right is the ability to keep arms in one’s home. Nevertheless, properly considered, the constitutional right to bear arms extends beyond the home.

Two major cases are currently pending that may significantly affect public carry rights. In Young v. Hawaii, the Ninth Circuit will soon go en banc to reconsider whether Hawaii’s statute limiting public carry to exceptional cases is unconstitutional. The panel decision, which upheld a right to public carry, has created a split with other circuits.

In New York State Rifle & Pistol Association v. City of New York, now before the Supreme Court, petitioners challenge a unique New York City law prohibiting individuals with “premises permits” from transporting their guns, locked up and unloaded, anywhere except for seven licensed city shooting ranges. While New York State Pistol & Rifle concerns firearms transportation, the Supreme Court may take this opportunity to recognize that the Constitution protects carrying guns outside the home generally.

Today’s debates on the right to bear arms often focus on the text of the Second Amendment and its understanding at the Founding: does the Second Amendment create an individual right, or does it primarily concern the bearing of arms in state militias? However, as constitutional scholars like Professor Akhil Amar have noted, the best argument for an individual right to bear arms comes from the Fourteenth Amendment and the history of Reconstruction.

As Professor Amar and Justice Thomas have noted, the right to bear arms in one’s home for self-defense was widely considered during Reconstruction as one of the fundamental privileges and immunities of United States citizens — rights the Reconstruction Congress sought to protect from state intrusion by passing the Fourteenth Amendment.

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In the years following the Civil War, newly freed black citizens in the South relied on arms for self-defense against racial violence perpetuated by the Ku Klux Klan and its ilk. As the Heller Court recognized, the Fourteenth Amendment was in part a federal response to attempts by Southern states to disarm black citizens through Black Codes, which Congress called “plain and direct violation[s] of their personal rights as guaranteed by the Constitution.”

However, the right to bear arms that Congress sought to protect through the Fourteenth Amendment was not limited to the home.

First, the Reconstruction Amendments were a direct response to the infamous Dred Scott decision, which warned that if blacks became citizens, they would enjoy all the “privileges and immunities of citizens,” including the right to “keep and carry arms wherever they went” (emphasis added). The Reconstruction Congress overruled Dred Scott and affirmed that blacks were citizens and did have these rights.

Second, references in the congressional record leading up to the Fourteenth Amendment imply an understanding of the right to bear arms as extending outside the home. A joint congressional report decried state infringement on freedmen’s right to bear arms “to kill game for subsistence and to protect their crops from destruction by birds and animals” and even opponents of the Amendment viewed the right to bear arms as encompassing not only the keeping of arms within one’s home, but the right “for every man bearing his arms about him.”

Third, Congress passed the Fourteenth Amendment against a historical backdrop that included not just Southern states’ attempts to disarm blacks, but widespread, open, and effective use of firearms by black citizens to defend themselves in a wide range of public settings. Professor Nicholas Johnson has detailed this history extensively:

Black citizens in the South frequently carried their rifles and pistols into town to defend themselves against racist violence; a Freedman’s Bureau report to the Reconstruction Congress in the months before the Fourteenth Amendment was passed noted that fearing for their safety, “nearly all” black citizens “sleep upon their arms at night, and carry concealed weapons during the day.”

Black citizens bore arms to political meetings and used them to fight off white attackers.

Black citizens carried their arms and camped outside town jails when their compatriots were arrested on specious charges, employing those weapons to fight off lynch mobs.

Black teachers and students were advised to, and did, carry revolvers to their schools, as one teacher informed the Senate Committee on Southern Reconstruction.

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Independent black militias drilled publicly to demonstrate their readiness to defend themselves and their communities – including in the streets of Washington, D.C. in 1867.

And when a member of the black community was threatened with violence, his friends and family would gather their weapons and transport them to his home, assisting in his defense until the danger had passed or they were overcome.

The historical record is rich with examples of the public arms bearing that Southern states tried to suppress and Congress, informed by reports from the Freedmen’s Bureaus, sought to protect. When state officers of the law were unwilling or unable to provide protection – or, as was often the case, were themselves perpetrators of racist violence — black citizens bore arms in public to defend themselves.

If the original public meaning of the Fourteenth Amendment, informed by its historical context, is what matters in our current gun rights cases, the Supreme Court should recognize that law-abiding citizens’ ability to publicly carry and transport firearms, just like the right to bear arms in one’s home, is a fundamental constitutional right.

The near-total enjoinment of this right by states like Hawaii and New York should not survive judicial scrutiny.

Connor Philip Mui is a student at Yale Law School, and graduate of Princeton University and the University of Cambridge.

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